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Ontario Courts Tell it Like it Is

A judge-cartoon

Ontario Courts Tell it Like it Is

While reviewing a few Ontario family decisions recently, I noticed that the judges introduced their written reasons with a subtle and judicially-uncharacteristic lament, and in some cases, outright incredulity.

Using phrases like “a family tragedy” or “unhappy story” the judges provide a glimpse of some of the empathy and quiet frustration underlying their otherwise-impartial decisions.

For example, in Zesta Engineering Ltd. v. Cloutier, the court introduced the case this way:

This lawsuit is a case study of the risks and consequences of intertwining business, family, and marital relationships. On its face, this proceeding involves claims for breach of fiduciary duty and misappropriation of corporate assets by departing employees, coupled with counterclaims for wrongful dismissal. Beneath the surface it is the unhappy story of the impact of a marriage breakdown on a successful business enterprise, and the decade of litigation that has ensued.

In a case called VanSickle (Elms) v. VanSickle the court began its judgment this way:

This is a family tragedy. The [father’s] relationship with his two children, … is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the [husband] has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. ….

And from Justice Quinn (who can often be relied on for a little editorializing in his judgments, see my previous Blogs, there is the less-moderate introduction to the decision in Szakacs v. Clarke, where he pointedly tells it like it is:

Introduction

For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. …

At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

Finally, in a judgment from only a few months ago called De Cruz-Lee v. Lee, the exasperated yet still-mindful judge said:

Overview

1 This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. Ms. Angela De Cruz-Lee (“Ms. De Cruz-Lee”) was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for. … [T]his trial originally was scheduled for one to four days and was set … to settle two issues. On November 17, 2014 a further pre-trial was held. The issues were down to ownership of the home estimated to be a one to two day trial. The trial in fact went on for nine days. The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount. I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. …

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Judges are only human. Such sentiments are no real surprise in light of the parade of difficult, doubtless heart-wrenching family disputes that come before them daily – some of which should never have been aired in a Canadian courtroom at all.

For the full text of the decisions, see:

Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

Szakacs v. Clarke, [2014] O.J. No. 6214

De Cruz-Lee v. Lee, 2015 ONSC 1900

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Should an unhappy mother be allowed to move from Canada back to Italy with her children?

Should an unhappy mother be allowed to move from Canada back to Italy with her children?

This was the issue a Court recently decided in a case we examine in our blog Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

What do you think?

Please read our responses or submit your own comments.

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Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

In this unusual Ontario case, the court allowed the mother to move back to Italy with the children of the marriage, even though she and the father had not filed for divorce and were not even formally separated.

The couple married in 2002 and initially lived in Rome, where their two children (now aged 6 and 9) were born. They moved to Toronto in 2007. The mother, who was 41 and had limited understanding in English, had worked as a lawyer in Italy but was unemployed while living in Canada. She had taken English classes and was trying to re-qualify as a Canadian lawyer, but this essentially required her to start law school all over again, which the couple did not have the money to do. She had therefore spent her entire time in Canada acting as the children’s primary caregiver. Meanwhile, the father worked at his cousin’s downtown restaurant earning $32,000 per year.

Unfortunately, the couple argued frequently and were in marriage counselling. The mother was miserable in Canada, had serious health problems, and did not get along with the father’s parents. She was frustrated at not being able to pursue her chosen profession, and alleged that she had endured some physical violence at the father’s hands. However, the couple had never formally separated, but rather continued to live together for financial reasons.

Against this background, the mother came to court to have it rule on a single question: whether she should be allowed to move back to Rome and take the children with her. The father wholeheartedly opposed her plan, as he feared he would inevitably lose contact with his children.

In hearing the matter, the court summarized the mother’s position as follows:

In essence, Mother says she is miserable here. Things did not work out as they had hoped. They have no money, she cannot work. She is cooped up in a small apartment, receiving no income and requiring government subsidies for daycare. She is isolated and terribly unhappy. This is why she wants to return to Italy with the children.

Mother’s parents bought her an apartment near to them and to schools in a nice neighborhood of Rome. If she returns to Italy, she can practise her chosen profession and earn a good income. She has two job opportunities available to her already. In Rome, she would enjoy the support of her extended family (which is considerable). Language would no longer be an issue for her.

The court applied the established legal tests to the situation, and considered all the factors including the mother’s historical status as primary caregiver, her reasons for moving, the desire to maximize contact with both parents, and the children’s own views. It also considered the dynamic between the children and various individuals, including their parents, both sets of grandparents, and other extended family.

In this case – and while acknowledging that both parents loved and wanted the best for the children – the court concluded that the mother’s plan to move back to Italy was in their best interests. For one thing, the move would optimize her ability to find remunerative and fulfilling work, which would in turn impact positively on the children’s lifestyle. The mother also had a supportive extended family, which included devoted and wealthy parents (they owned an apartment in Rome, a cottage in northern Italy, a beach house in southern Italy, and a timeshare condominium in Manhattan, all of which were available for the mother to use). The children were both Italian citizens and were fluent in the language; they would have very little difficulty adjusting to the move.
In coming to this conclusion, the court also took into account the impact on the father, primarily that he would no longer have frequent contact with the children. (And noted that the father had not decided on whether he was willing to move to Italy as well). Nonetheless, it was satisfied that the economic prospects of the mother (alone) in Italy would exceed the parent’s combined family’s economic prospects, were they to remain in Canada.

Accordingly, the court granted the mother’s request, and allowed her to move with the children back to Rome.

Trisolino v. De Marzi (2012), 2012 ONSC 3921  http://canlii.ca/t/fs3bs
Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

When a Non-Parent Wants Custody of a Child

 

When a Non-Parent Wants Custody of a Child

When parents separate or divorce, one of the many decisions to be made is how the custody of any children of the marriage should be divided.

However, in some cases, a person who is not the child’s parent will want to obtain custody of a child; for example the child’s grandparents or other extended family members, or even a close family friend.

The potential right of such parties to obtain custody arises under the Children’s Law Reform Act, which specifically provides that the persons who are entitled to apply for a court for a Custody or Access Order is “a parent of a child or any other person”.

Not surprisingly, however, the Act also provides detailed requirements in connection with an application made by a non-parent.

First of all, any individual who wants to ask a court for a Custody Order must complete and file two particular Forms (Form 8: “Application”, and Form 35.1: “Affidavit in support of claim for custody or access”; both are available at www.ontariocourtforms.ca). These Forms are filed with the court office.

Then, he or she must also file a police Record Check, which involves the applicant completing a Consent Form for Police Record Check for Non-Parent Custody Applicants, and submitting it with a fee to his or her local a police station (although not all of them conduct police Record Checks).

The completed Record Check as returned from the police must be served on any other parties (including the biological parents), and must also be filed with the court within 10 days. A previously obtained Record Check can be submitted as long it meet certain regulatory requirements, and was completed within 60 days that the application was commenced.

Next, the non-parent applicant must also sign a form that authorizes the provincial Children’s Aid Societies to provide information about certain records that they might possess about the applicant for custody. This involves completing a CAS Report on Records Form, which can be completed at the courthouse counter. The Affidavit in support of a claim for custody or access is sworn after the CAS Report on Records form has been completed.

If the CAS report indicates that the Children’s Aid Society was involved with the non-parent applicant, then the Report is shared with the court and with other parties. (There are also specific procedures to follow for cases where the applicant does not want the Report to be shared). However, if the CAS has no records on the applicant, then the Report is kept in a sealed file and is not shared.

Finally, upon receiving an application for custody by a non-parent, the court staff will also search court records from across Ontario as part of a report indicating whether there have been any family law cases involving the non-parent applicant or the child. The judge may also ask court staff to search court records for criminal cases.

The process to be followed by a non-parent who wishes to apply for custody of a child involves certain necessary and important steps. For further information, contact Russell Alexander, Family Lawyers.

 

 

Wife Awarded $110,000.00 Monthly Spousal Support

An Ontario Court has ordered a husband to pay his wife $110,000 per month for spousal support and also ordered the husband to pay his wife $140,000 retroactive month;y spousal support. The retroactive award totaled $1.68 million.

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